Trump-era special counsel John Durham faces first test in trial of lawyer with ties to Clinton campaign

Washington – As Capitol Hill and the White House turn their attention to the 2022 midterm elections and beyond, jurors in the nearby Washington, D.C., federal courthouse will be asked instead to look backward — at events surrounding the 2016 presidential election — as special counsel John Durham's team begins its first criminal trial since his appointment three years ago. 

Attorney Michael Sussmann, whose one-time law firm represented Hillary Clinton's 2016 presidential campaign, is charged with a single count of lying to investigators that year, after he brought the FBI unverified evidence that may have connected Trump Tower with Russia's Alfa Bank. 

It is not the content of Sussmann's tip that will be at issue at trial, but his alleged representation that he had brought the information to investigators on his own and not on behalf of any legal client. 

According to Durham – a holdover from the Trump administration who was appointed special counsel by then-Attorney General William Barr to review allegations that those investigating Donald Trump's possible connections with Russia had engaged in investigative misconduct – Sussmann met with then-FBI general counsel James Baker on Sept. 19, 2016, to provide data from a cyber firm purportedly linking Trump to the Russian bank.

Sussmann is accused of lying to the FBI in asserting he had brought the cyber data to Baker of his own volition, and not on behalf of a client. According to the indictment filed last September, Sussmann "acted on behalf of specific clients," namely a tech executive named Rodney Joffe who allegedly worked with the cyber analysts, and the Hillary Clinton campaign.

"Sussmann's false statement misled the FBI General Counsel and other FBI personnel concerning the political nature of his work," Durham's team argues, adding the investigators might have more carefully scrutinized the data had they known about his alleged ties to Joffe and the Clinton campaign. 

The indictment against Sussmann alleges Joffe, identified only as "Tech Executive-1," hired Sussmann as his lawyer and claimed he had been offered a "top" cybersecurity position in the government if Clinton won the election. 

Ultimately, the FBI found that there was insufficient evidence to support the allegations that there had been a secret communications channel between the Trump Organization and the Russian bank, and Sussmann has pleaded not guilty to the single count brought against him.

In legal filings and court hearings, Sussmann's attorneys oppose the allegations, defending their client's actions as insignificant and accusing Durham's team of "trying to prove a conspiracy theory" by revealing "uncharged" information in documents. The allegations against Sussman were immaterial to the broader FBI investigation into Trump, they argue, and the special counsel has erroneously linked the data Sussmann delivered with the Clinton Campaign. 

But at trial, prosecutors will likely tell the jury that Sussmann, a noted cyber attorney, misled FBI investigators beginning on the eve of the Sept. 19 meeting, with  a text message to Baker in which Sussmann allegedly wrote, "I'm coming on my own – not on behalf of a client or company – want to help the Bureau." The government says he purposefully hid his political connections to make the tip appear more legitimate. 

Government witnesses may include Baker, Former FBI Assistant Director Of Counterintelligence Bill Priestap, and attorney Marc Elias, who worked at Perkins Coie and  represented the Clinton Campaign, prosecutors this week told Judge Christopher Cooper. Cooper will oversee the politically charged criminal trial that is expected to last two weeks.

Sussmann's defense team will likely call as witnesses New York Times reporter Eric Lichtblau with whom Sussmann allegedly communicated at the time, former Acting Attorney General Mary McCord, and Justice Department Inspector General Michael Horowitz. Horowitz's office notably found that despite flaws and mistakes, there was no political bias in the launch of the investigation into Russian interference in the 2016 election and any Trump campaign ties to Russia, a conclusion with which Durham publicly statedhe did not agree.

Defense attorneys have said in court that Sussmann's connections to Democratic political operatives were already known at the time in question, and they won't challenge Durham's claim that Susssann worked to amplify the data in the media. 

The upcoming trial's high-profile and polarizing nature comes not just from its connection to the two former 2016 political foes, but from contentious court filings filled with accusations of politics and overbreadth.

In one filing from last year, Durham's team wrote that Joffe, the executive who worked with the Alfa Bank data collection team, "tasked these researchers to mine Internet data to establish 'an inference' and 'narrative' tying then-candidate Trump to Russia. In doing so, [Joffe] indicated that he was seeking to please certain 'VIPs,' referring to individuals at [Sussmann's lawfirm] and the Clinton Campaign." 

Sussmann's legal team wrote back that Durham was trying to "make this case a partisan affair and to inflame media coverage" by including uncharged allegations against individuals and the Clinton campaign in an attempt to prove they "all worked together to unfairly influence the 2016 election."

Although he is not charged with a crime, prosecutors say Joffe remains under investigation, and the defense has urged Durham's team to give him immunity in the case to free him to "offer critical exculpatory testimony on behalf of Mr. Sussmann. This would apparently include that Joffe's work with the [data scientists who collected the data] was not connected to the Clinton Campaign."

For his part, Cooper has already tried to narrow the scope of the witness testimony with his rulings to date, like allowing the government to examine the collection and use of the Alfa Bank data, but preventing them from discussing the accuracy of the Trump-Russia connection, and attempting to allow both sides to make their cases without exacerbating the case's political context. The judge also ruled late last week that while a majority of emails belonging to Fusion GPS — the research firmed tied the Clinton campaign and the now-debunked Steele Dossier — could be released to Durham's team, they cannot be used at trial because the timing of the request could prejudice the case against Sussmann's defense. 

And while this case is the first real test for Durham's prosecution team, Cooper likely will also be scrutinized over his rulings throughout the trial. 

Jury selection begins on Monday.